LOPEZ-ARENAS v. ZISA et al

Filing 37

OPINION. Signed by Judge Esther Salas on 3/19/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALEXANDER LOPEZ-ARENAS,
Plaintiff,
v.
CHIEF C. KENNETH ZISA, et al.,
Defendants.

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Civil Action No. 10-2668 (ES)

OPINION

SALAS, DISTRICT JUDGE
Pending before this Court is a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed
by Defendants Deputy Chief Frank Zisa (“Deputy Zisa”), Sergeant Anthony Trezza (“Sgt.
Trezza”), and Lieutenant John Heinemann (“Lt. Heinemann”). (D.E. 14-3, Def. Moving Br.).
Having considered the parties’ submissions, the Court GRANTS Defendants’ Motion in part and
DENIES it in part, granting Plaintiff leave to amend his complaint, where noted in this Opinion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 2010, Plaintiff Alexander Lopez-Arenas, a police officer of the Hackensack

Police Department (“HPD”), filed various constitutional and statutory claims against Defendants
Chief Kenneth Zisa (“Chief Zisa”), Deputy Zisa, Sgt. Trezza, Lt. Heinemann, the City of
Hackensack (“Hackensack”), and the HPD (collectively, the “Defendants”). Plaintiff alleges that
Defendants violated his First Amendment rights under 42 U.S.C. §§ 1983 and 1985 and
discriminated against him on the basis of his military status in violation of the Uniformed
Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311, et seq.;
the New Jersey Law Against Discrimination (“LAD”), N.J. Stat. § 10:5-1, et seq.; and the New

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Jersey Soldiers’ and Sailors’ Civil Relief Act (“SSCRA”), N.J. Stat. § 38:23c-20a and 38A:4-4.
(D.E. 8, Am. Compl. ¶¶ 1-3, 41).
Plaintiff alleges that Defendants violated his First Amendment rights when members of
the HPD interfered with his right of free expression in voting in various state, municipal, and
union elections. (See, e.g., id. ¶¶ 5-6, 36, 39). At the core of Plaintiff’s First Amendment claims
are allegations that Chief Zisa, with the assistance of officers in the Department, used his office
in an official capacity to control the HPD to meet his own personal goals for financial and
political gain. (Id. ¶ 6). Specifically, Plaintiff alleges that Chief Zisa used his position as Chief
of Police to influence elections for State Assembly, State Senate, the Bergen County Sheriff’s
Office, County Freeholders, and the Policemen’s Benevolent Association Local 9 Chapter
(“PBA”). (Id.). Chief Zisa and his associates forced members of the HPD to support the Chief’s
campaigns or face retaliation by demotion, detrimental transfer, and/or withholding promotion.
(Id. ¶ 8). For example, during the PBA delegate elections, Chief Zisa’s “underlings” allegedly
watched as Plaintiff cast his ballot and later asked how he voted as an implicit warning that he
must support certain candidates or suffer retaliation. (Id. ¶ 23). Earlier, Sgt. Trezza had warned
Plaintiff that if he “wanted to proceed up the ranks,” it was in his best interest to contribute to
Chief Zisa’s campaigns. (Id. ¶ 22). Plaintiff alleges that he suffered retaliation by demotion to a
walking post for refusing to support certain candidates as directed by Chief Zisa. (Id. ¶¶ 23, 26).
In addition to the § 1983 and § 1985 claims, Plaintiff asserts violations of USERRA,
LAD, and SSCRA based upon allegations of discrimination by members of the HPD on the basis
of Plaintiff’s military status. On two separate occasions between the years 2004 and 2009,
Plaintiff served overseas deployments with his National Guard unit. (Id. ¶¶ 25-30). Plaintiff
claims that, upon his return, the HPD denied him the level of compensation and benefits owed to

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him under USERRA. (Id. ¶¶ 27, 33). Additionally, HPD officials reassigned Plaintiff to
walking posts upon his pressing the Department to comply with USERRA regulations. (Id. ¶¶
26, 27) At that time, Lt. Heinemann warned Plaintiff, “I wouldn’t push the issue. It may not end
up in your favor.” (Id. ¶¶ 23-30). The allegations of discrimination and the factual assertions
that form the basis of the USERRA claims also comprise Plaintiff’s LAD and SSCRA claims.
(Id.).
II.

LEGAL ANALYSIS
A.

Legal Standard and General Arguments

For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining
the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the
complaint as true and draw all reasonable inferences in favor of the non-moving party. See
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). But, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions[;] [t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Generally, Defendants argue that Plaintiff failed to plead sufficient factual matter to
satisfy the Twombly standard on necessary elements for each of Plaintiff’s claims. (Def. Moving
Br. at 10). As to the § 1983 claims, Defendants argue that Plaintiff failed to plead the necessary
element of Defendants’ “personal involvement” in the First Amendment violations with facts
demonstrating Defendants’ “knowledge and acquiescence” of the alleged retaliatory acts. (Id. at
12-13). As to the USERRA claims, Defendants argue that Plaintiff fails to adequately plead that

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Defendants were personally involved in taking any adverse, retaliatory employment actions, and
failed to allege that the Defendants involved in those actions were “employers” under the statute.
(Id. at 14-15).

Similarly, Defendants argue that Plaintiff failed to state a claim against

Defendants under SSCRA because only the employer holds the power to provide or deny the job
benefits protected by the statute. (Id. at 14-15). Finally, although Defendants concede that
supervisory liability could exist under LAD through aiding or abetting the employer’s
discriminatory acts, Plaintiff failed to plead the necessary element of Defendant’s “active and
purposeful conduct” in doing so. (Id. at 18).
In opposition, Plaintiff argues that the Amended Complaint contains sufficient factual
detail as to the involvement of each of the Defendants to withstand the motion to dismiss. (D.E.
20, Pl. Opp. Br. at 11). On the § 1983 claims, Plaintiff states that Chief Zisa and his associates
deprived Plaintiff’s rights by demoting him to walking posts following his failure to vote for or
support certain candidates in state, local, and union elections. (Id. at 11-12). Plaintiff argues that
his USERRA claims should not be dismissed because Plaintiff “had a duty to obey the orders” of
each of the Defendants, which is sufficient to establish them as “employers” for purposes of
USERRA liability. (Id. at 15-16). As to the LAD claims, Plaintiff argues that the standard for
aiding and abetting liability includes a supervisor’s awareness of and subsequent failure to
prevent the violation. (Id. at 14). Plaintiff also argues that employer liability applies to the
Defendants under SSCRA based on the absence of language in the statute that would preclude
application of “employer” status to the Defendants in this case. (Id. at 17-18).

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B.

Section 1983 Claims1

Defendants argue that a § 1983 claim requires allegations pled with sufficient factual
matter to demonstrate each Defendant’s personal involvement in the constitutional violations.
(Def. Moving Br. at 12-13). As such, Defendants argue that Plaintiff does not satisfy his burden
of alleging personal involvement by the Defendants based on mere assertions of their knowledge
of the violations and subsequent failure to act against the retaliation. (Id.). Under the following
analysis, Plaintiff’s § 1983 claims against Deputy Zisa and Lt. Heinemann are dismissed without
prejudice, and the § 1983 claim against Sgt. Trezza survives.
Section 1983 provides a cause of action when a state actor retaliates against an individual
for participating or engaging in conduct protected by the First Amendment. Myers v. Cnty. of
Somerset, 515 F. Supp. 2d 492, 500 (D.N.J. 2007) (citing Bradshaw v. Twp. of Middleton, 145 F.
App’x 763, 766-67 (3d Cir. 2005)). To state a First Amendment retaliation claim, the plaintiff
must allege that (1) the plaintiff’s conduct received First Amendment protection because it
addressed a matter of public concern, (2) the state actor retaliated against the plaintiff, and (3) the
plaintiff’s protected conduct was a substantial or motivating factor in the retaliation. Id. Courts
do not recognize § 1983 liability on a theory of respondeat superior; instead, a plaintiff is

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At the outset, the Court notes that the first paragraph in the Amended Complaint cites 42 U.S.C. § 1985. (Am.
Compl. ¶ 1). However, Plaintiff fails explicitly to allege anywhere else in the Complaint its specific theory of §
1985 liability or the specific parties to whom § 1985 allegedly applies. (See generally id.). The Court therefore
finds that any purported claims under § 1985 fail to meet the pleading requirements of Federal Rule of Civil
Procedure 8(a), and are dismissed without prejudice. See generally In re Insurance Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 555) (“Under Rule 8(a)(2), a complaint need present
only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”). More generally, the Court is
troubled by the fact that Plaintiff has not separated the Complaint into separate Counts, and instead, Plaintiff has
listed all of his claims against Defendants in an omnibus “Count One.” (See Am. Compl. ¶¶ 35-47). To the extent
Plaintiff chooses to amend consistent with this Opinion (and to the extent Defendants move again for dismissal), the
Court cautions the Plaintiff as follows: the Court will closely scrutinize any claim that is not broken into a separate
count; that does not list the specific elements required to sustain a claim under the count’s statutory or other basis;
that does not provide facts plausibly supporting each element of the count; that does not state which facts plausibly
support each element of each count; and that does not explicitly state which Defendants are implicated by each
count.

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required to allege that the defendant, through defendant’s own actions, violated the Constitution.
See Iqbal, 129 S. Ct. at 1948; see also Jordan v. Cicchi, 428 F. App’x 195, 198-99 (3d Cir. 2011)
(citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). As such, supervisory
liability would apply under § 1983 if the state actor “participated in violating the plaintiff’s
rights, directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
In addition, to adequately plead a First Amendment retaliation claim, § 1983 requires that
the plaintiff allege that the defendant holds supervisory authority over an employee in order to
sustain the action. See Aiellos v. Zisa (Aiellos II), No. 09-3076, 2010 WL 421083, at *3 (D.N.J.
Feb. 2, 2010) (holding that defendant’s threat of retaliation did not give rise to a cognizable §
1983 claim because defendant was “merely another line officer . . . not a sergeant, lieutenant,
captain” with supervisory authority). Supervisory authority can exist “even if the supervisor has
no formal power to discharge the employee if the supervisor’s conduct could constructively
discharge the employee in connection with disciplinary charges or proceedings initiated by the
supervisor.” Aiellos v. Zisa (Aiellos I), No. 09-3076, 2009 WL 3424190, at *5 (D.N.J. Oct. 20,
2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 240 (3d Cir. 2006) (“A supervisor who
lacks the power to terminate a subordinate’s employment may nonetheless abuse his power with
respect to that subordinate, and may even constructively discharge the subordinate, provided he
(the supervisor) exercises some power over the employee.”)). As a result, the Court could only
hold Defendants liable for First Amendment retaliation under § 1983 if (1) Defendants were
personally involved in the violations and (2) had supervisory authority over the Plaintiff.

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Defendants dispute only the second of the three elements of the First Amendment claim:
proof of retaliation. As such, the Court must first determine whether Plaintiff has sufficiently
alleged each Defendant’s personal involvement, and second, whether each Defendant had
supervisory authority over the Plaintiff.
As to personal involvement, Defendants argue, “[Plaintiff] provides no facts in support of
[his] claims,” and that Plaintiff “does not allege a single fact to link an action or inaction on these
defendants’ behalf to any alleged constitutional violation.” (Def. Br. at 13 (relying on In re
Tower Air, Inc., 416 F.3d 229 (3d Cir. 2005))). Plaintiff argues, “Defendants [Deputy] Zisa,
[Lt.] Heinemann and [Sgt.] Trezza were aware that Chief Zisa’s policies deprived [Plaintiff] of
these rights and they chose to assist Chief Zisa in carrying out these illegal policies,” relating to a
deprivation of Plaintiff’s First Amendment rights. (Pl. Opp. at 13). To evaluate the parties’
arguments, the Court reviews the allegations in the Amended Complaint as to each Defendant.
1.

Deputy Zisa

Plaintiff explicitly references Deputy Zisa three times in his Amended Complaint. First,
Plaintiff mentions Deputy Zisa—in addition to Sgt. Trezza and Lt. Heinemann—generally:
From the time that he was hired by the Hackensack Police Department, Plaintiff
found the department to be operated essentially like a mob. In order to be treated
fairly, Plaintiff and the other police officers had to follow the dictates of Chief
Zisa and his associate officers, including his brother, Deputy Chief Frank Zisa, Lt.
Heineman[n] and Sgt. Trezza. If the Chief or one of his “associates” did not like
you, you suffered retaliation. Sgt. Trezza was a very close friend of the Chief’s,
having grown up with him. Lt. Heinemann was Chief Zisa’s “right-hand man.”
(Am. Compl. ¶ 21).

Second, Plaintiff mentions Deputy Zisa in the context of a dating

relationship:
During this time Plaintiff was dating a fellow Hackensack Police Officer.
Subsequent to their eventual breakup this female officer began to date Deputy
Chief Frank Zisa. Shortly thereafter, Defendant Frank Zisa did approach Plaintiff

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and told him to stay away from this woman. Plaintiff understood that even the
slightest breach of this order would result in retaliation in the workplace.
(Id. ¶ 31). Third, Plaintiff mentions Deputy Zisa as one of three Defendants who stood back
when Plaintiff’s rights were violated:
Defendants did take actions with full knowledge of the rights due and owing
Plaintiff, consistent with the overall approval of a Chief Zisa led department
predicated on intimidation and abuse of power. Those in line of succession to
Defendant C. Kenneth Zisa, including Defendant Frank Zisa, Defendant John
Heinemann and Defendant Anthony Trezza knew or should have known that
Plaintiff’s rights were being violated yet they did nothing to ensure that the law
was followed. They breached their duty.
(Id. ¶ 42). The three allegations against Deputy Zisa fail under Twombly because they do not
provide sufficient allegations “personally connecting” Deputy Zisa to the alleged constitutional
wrongs. Campos v. City of Hackensack, No. 09-3076, 2011 U.S. Dist. LEXIS 33457, at *17
(D.N.J. Mar. 29, 2011) (finding that allegations against Chief Zisa’s associate, Captain Padilla,
“lack[ed] specificity” and failed to “sufficiently connect Padilla to the alleged wrong” because
the allegations failed to demonstrate “how Zisa and Padilla made known their choice for
the . . . election,” “how it was communicated to Plaintiffs,” and “who made threats and what sort
of retaliation was threatened”).
Paragraph 21—regarding the “mob”-like nature of the HPD—alleges that officers “had to
follow the dictates of Chief Zisa and his associate[s],” but Plaintiff fails to specify the content of
those dictates. Additionally, Plaintiff fails to explain which dictates involved Deputy Zisa.
Paragraph 31—regarding Deputy Zisa’s statement to “to stay away from this woman”—does not
demonstrate a sufficient link between Deputy Zisa, a constitutional wrong, and the threat of
retaliation. Paragraph 42—alleging “Defendant Frank Zisa, Defendant John Heinemann and
Defendant Anthony Trezza knew or should have known that Plaintiff's rights were being violated
yet they did nothing”—does not sufficiently allege instances of Deputy Zisa’s personal direction
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of the violations of Plaintiff’s rights or of Deputy Zisa’s “actual knowledge and acquiescence.”
Rode, 845 F.2d at 1207. Plaintiff’s allegation that all three officers “knew [but] did nothing,”
merely sets forth the Rode standard without identifying any facts to plausibly support the
conclusory allegation. See Arnold v. New Jersey, No. 03-3997, 2007 WL 1381757, at *4 (D.N.J.
May 9, 2007) (dismissing § 1983 claim where plaintiff alleged only that “Defendants ‘allowed
such racial profiling practices’” because “[t]here are no other specific factual allegations linking
the State Defendants to the alleged constitutional violation”). Because the Court has found that
the § 1983 claims against Deputy Zisa did not sufficiently allege his personal involvement, the
Court does not address whether Deputy Zisa had supervisory authority over Plaintiff.
Accordingly, Plaintiff’s § 1983 claims against Deputy Zisa are dismissed without prejudice.
2.

Sgt. Trezza

The main allegation specifically against Sgt. Trezza relates to electoral contributions:
Shortly after he joined the department, plaintiff was advised by Defendant Trezza
that if he wanted things to work out for him on the job, it was in his best interest
to contribute to Chief Zisa’s electoral campaigns. If [sic] effect, if he wanted to
proceed up the ranks, he needed to contribute. Plaintiff had to contribute cash
monies to Defendant Trezza, purportedly to be delivered to the Chief, to avoid
incurring the wrath and power of the Chief and those underlings doing his
bidding.
(Am. Compl. ¶ 22). This allegation provides the necessary personal connection between Sgt.
Trezza and a deprivation of Plaintiff’s right to participate freely in electoral campaigns. The
statement that “if he wanted things to work out for him on the job, it was in his best interest to
contribute to Chief Zisa’s electoral campaigns,” plausibly supports the allegation that Plaintiff
was not free to choose the candidate of his choice without “incurring the wrath and power of the
chief.” Taking the allegation as true for purposes of this motion to dismiss, Plaintiff’s failure to
“contribute cash monies to Defendant Trezza” would result in Plaintiff’s inability to “proceed up

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the ranks,” a retaliatory penalty. (Id.); see Ferraioli v. City of Hackensack Police Dep’t, No. 092663, 2010 WL 421098, at *1 (D.N.J. Feb. 2, 2010) (holding that plaintiffs’ § 1983 claim against
Sgt. Trezza survived because plaintiffs “assert[ed] that they were threatened by Sergeant Trezza
and Captain Carroll, among others, with adverse employment action if they did not vote for
[Chief Zisa’s candidate]”).
Additionally, Plaintiff sufficiently alleges that Sgt. Trezza had supervisory authority over
Plaintiff for purposes of § 1983 for three reasons. First, Plaintiff alleges that Sgt. Trezza had
some managerial control over the department. (See Am. Compl. ¶ 6 (“[Chief Zisa] has enlisted
the assistance of other officers within the Department, including defendants Heinemann and
Trezza, to control the department to meet only his personal goals.”) (emphasis added)). Second,
Sgt. Trezza is alleged not to be a mere “line officer.” Instead, Sgt. Trezza is “a Sergeant with the
Hackensack Police Department.”

(Id. ¶ 13); see Aiellos II, 2010 WL 421083, at *3

(distinguishing between a mere “line officer” and an officer with supervisory authority such as a
sergeant, lieutenant, or captain). Third, Plaintiff alleges that Chief Zisa’s supervisory authority
flowed through, among others, Sgt. Trezza. (See id. ¶ 21 (“In order to be treated fairly, Plaintiff
and the other police officers had to follow the dictates of Chief Zisa and his associate officers,
including . . . Sgt. Trezza. If the Chief or one of his ‘associates’ did not like you, you suffered
retaliation.”)).

Accordingly, Plaintiff’s § 1983 claim against Sgt. Trezza survives because

Plaintiff has sufficiently alleged that Sgt. Trezza was personally involved in the violations and
had supervisory authority over the Plaintiff.
3.

Lt. Heinemann

The only specific allegation against Lt. Heinemann relates to Plaintiff’s USERRA
benefits:

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Nevertheless, Plaintiff attempted to seek proper remuneration. On or about May
7, 2010, Plaintiff spoke with Supervising Officer, Lt. John Heinemann regarding
his receiving what the law requires.
Heinemann told Plaintiff that “I wouldn’t push the issue. It may not end up in
your favor.’ Heinemann advised Plaintiff that he “should think about it.”
Plaintiff was further intimidated by Heinemann who was clearly telling Plaintiff
that any further attempts to recover what he was legally owed would result in
ramifications to his employment circumstances.
(Am. Compl. ¶¶ 37-38). Because Plaintiff’s § 1983 claims appear to be predicated on Plaintiff’s
“Constitutional right not to support political positions,” (id. ¶ 38), and his “freedom to associate
with his union by voting for the delegate of his choice,” (id. ¶ 39), Plaintiff’s allegations
involving USERRA benefits do not demonstrate Lt. Heinemann’s personal involvement in
violations of § 1983.2 Because the Court finds that the § 1983 claims against Lt. Heinemann did
not sufficiently allege his personal involvement, the Court does not address whether Lt.
Heinemann had supervisory authority over Plaintiff. Accordingly, Plaintiff’s § 1983 claims
against Lt. Heinemann are dismissed without prejudice.
C.

USERRA Claims

Defendants also seek dismissal of Plaintiff’s USERRA claims on the grounds that
Plaintiff fails to adequately allege that each of the Defendants was personally involved in
violating Plaintiff’s rights under USERRA and that the Defendants do not meet the definition of
an “employer” under the statute. (Def. Moving Br. at 14-15). Plaintiff argues that he “had a
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The Court notes that it is difficult to determine from Plaintiff’s Amended Complaint whether Plaintiff also
predicates his § 1983 violations on his deprivation of rights under USERRA. Again, Plaintiff’s claims are listed in
omnibus fashion under the heading “Count One,” followed by thirteen separate paragraphs alleging violations of
constitutional rights, USERRA, and LAD. Because the Court finds that Plaintiff’s § 1983 claims appear to be
cabined to ¶¶ 35-40—before Plaintiff’s USERRA allegations in ¶¶ 41-47—the Court will not address whether a
claim under § 1983 can be predicated on a violation of USERRA. The Court notes, however, that Courts that have
addressed this issue have held that violations of USERRA cannot serve as predicates for claims under § 1983. See
Morris-Hayes v. Bd. of Educ., 423 F.3d 153, 159 (2d Cir. 2005) (“[W]e hold that USERRA is not a statute for which
redress is available against the Individual Defendants under § 1983.”); Garcia v. Ill. State Police, No. 05-3273, 2006
WL 2191341, at *2 (C.D. Ill. July 31, 2006) (following Morris-Hayes); Satterfield v. Borough of Schuylkill Haven,
12 F. Supp. 2d 423, 438 (E.D. Pa. 1998) (finding that Plaintiff’s USERRA claims subsumed Plaintiff’s
constitutional claims based on the same set of facts).

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duty to obey the orders of . . . Deputy Chief Zisa, Sgt. Trezza and Lt. Heinemann and these
defendants can be held individually liable for the violations of plaintiff’s rights under USERRA.”
(Pl. Opp. Br. at 16). On reply, Defendants argue that “none of these defendants is alleged to
have taken any action to interfere with Lopez-Arenas’ USERRA benefits,” that “speculation that
these defendants can potentially he [sic] held liable because they had supervisory authority over
Lopez-Arenas is not supported,” and that Plaintiff “fails to specify what actions taken by these
defendants interfered with his USERRA rights.” (Def. Reply Br. at 6-7). Based on the following
analysis, the Court dismisses Plaintiff’s USERRA claims against Deputy Zisa, Sgt. Trezza, and
Lt. Heinemann.
The purposes of USERRA are to minimize the disadvantages experienced by service
members in their civilian careers, to minimize the disruption of the lives of service members
when they return to their civilian jobs, to provide prompt reemployment upon return, to prevent
discrimination on the basis of an employee’s service, and to prevent the deprivation of an
employment benefit based on military status. See Gordon v. Wawa, Inc., 388 F.3d 78, 85 (3d
Cir. 2004). The core statutory provisions of USERRA for purposes of this action are as follows:
A person who . . . has performed . . . in a uniformed service shall not be denied
initial employment, reemployment, retention in employment, promotion, or any
benefit of employment by an employer on the basis of that . . . performance of
service . . . .
38 U.S.C. § 4311(a);
An employer may not discriminate in employment against or take any adverse
employment action against any person because such person (1) has taken an action
to enforce a protection afforded any person under this chapter . . . or (4) has
exercised a right provided for in this chapter.
Id. § (b) (emphasis added). “USERRA provisions are construed ‘liberally, in favor of the service
member.’ This is not surprising because military service ranks as one of the highest forms of

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public service a citizen can undertake.” Spadoni v. Easton Area Sch. Dist., No. 07-5348, 2009
WL 449108, at *2 (E.D. Pa. Feb. 19, 2009) (quoting Gordon, 388 F.3d at 81).
USERRA’s plain language requires that a Plaintiff sufficiently plead that a defendant
“took [an] adverse employment action” against Plaintiff and that the defendant was an
“employer” for purposes of the statute. See 38 U.S.C. § 4311(b). Because the Court finds that
Plaintiff has failed to adequately plead that each Defendant took an adverse employment action
against the Plaintiff, the Court takes no view as to whether the allegations satisfy the second
requirement, “employer” status.
Plaintiff’s general, conclusory, and non-specific allegations against “Defendants” or the
“department” are insufficient as to Deputy Zisa, Sgt. Trezza, and Lt. Heinemann to survive Rule
12(b)(6). Plaintiff makes no USERRA-related allegations against Deputy Zisa specifically, and
Plaintiff’s allegations against Sgt. Trezza and Lt. Heinemann are too general to plausibly
demonstrate that they took an adverse employment action against Plaintiff.

For example,

Plaintiff alleges that he “suffered retaliation in the form of the department’s refusal to provide
him with his compensation and benefits pursuant to USERRA,” but allegations against the
“department” do not demonstrate that Deputy Zisa, Sgt. Trezza, or Lt. Heinemann took any
action that adversely affected Plaintiff. (See Am. Compl. ¶ 23). Likewise, Plaintiff’s allegation
that “the Defendants failed to comply with their USERRA obligations and continue[d] to assign
Plaintiff to a walking position” does not attribute Plaintiff’s demotion to Deputy Zisa, Sgt.
Trezza, or Lt. Heinemann; rather, the adverse action is attributed to “Defendants” generally.
(See id. ¶ 27; see also id. ¶ 30 (“The Defendants violated this provision of USERRA [38 U.S.C.
§ 4316(a)] when they demoted Plaintiff to a walking post following both deployments.”)
(emphasis added)). The Court finds that because these conclusory allegations are not supported

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by facts demonstrating that Deputy Zisa, Sgt. Trezza, or Lt. Heinemann took an adverse action
against Plaintiff, the allegations are too conclusory to satisfy Rule 12(b)(6).
Plaintiff’s additional USERRA-related allegations similarly fail to provide adequate
factual support that Deputy Zisa, Sgt. Trezza, or Lt. Heinemann took adverse employment
actions against Plaintiff. For example, Plaintiff alleges, “[w]hen Plaintiff attempted to pursue his
claims for these [USERRA] benefits and monies, he was retaliated against by Chief Zisa with the
assistance of defendants Trezza and Heinemann.” (Am. Compl. ¶ 5). With this allegation,
Plaintiff fails to explain what sort of retaliatory actions were taken by Sgt. Trezza or Lt.
Heinemann, and Plaintiff fails to plausibly support this claim of “assistance” with any facts.
Plaintiff alleges that he “was also retaliated against for engaging in military activity in violation
of USERRA and for demanding the payments and benefits due him under USERRA” when he
returned from his service with the National Guard. (Id. ¶ 8). Although this conclusory allegation
targets precisely the type of deprivation prohibited by USERRA, Plaintiff fails to plausibly
support it with any facts, and he fails to link the alleged retaliation to any Defendant in
particular. In the core allegation of his Amended Complaint, Plaintiff alleges that “[i]n order to
be treated fairly, Plaintiff and the other police officers had to follow the dictates of Chief Zisa
and his associate officers, including his brother, Deputy Chief Frank Zisa, Lt. Heineman[n] and
Sgt. Trezza. If the Chief or one of his ‘associates’ did not like you, you suffered retaliation.”
(Id. ¶ 21). Although, Plaintiff generally alleges a culture of corruption, Plaintiff fails to explain
which “dictates” were issued and by which officer. Additionally, Plaintiff fails to support this
allegation with enough facts even to determine what actions—those protected by USERRA or
those protected by another statute listed in Plaintiff’s Amended Complaint—led Chief Zisa’s
“associates” to retaliate.

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Plaintiff’s allegations in Paragraphs 37 and 38, regarding Lt. Heinemann’s warning to
Plaintiff—“I wouldn’t push the issue [because] [i]t may not end up in your favor.” (Am. Compl.
¶ 38)—come closest to satisfying Rule 12(b)(6), but still fail to connect Lt. Heinemann to a
particular retaliatory action.

Although Plaintiff connects Lt. Heinemann to a threatening

statement, Plaintiff’s theory of USERRA liability against Lt. Heinemann as a result of these
threats remains unclear. If Plaintiff’s theory is that Heinemann followed through on his threats
and took some retaliatory action, Plaintiff does not make clear what that action was.
Alternatively, if Plaintiff means to infer that Lt. Heinemann’s threats led to Plaintiff’s demotion
to a walking position, (see id. ¶¶ 26, 27, 30), then Plaintiff fails to make this allegation
affirmatively. Additionally, Plaintiff alleges that he approached Lt. Heinemann to “seek proper
remuneration” after being demoted to a walking post for having “voic[ed] his complaints,” and
therefore it is unclear what type of retaliation Plaintiff experienced as a result of his conversation
with Lt. Heinemann.3 Therefore, the Court dismisses without prejudice the USERRA claims
against Deputy Zisa, Sgt. Trezza, and Lt. Heinemann.
D.

LAD Claims

Plaintiff claims that the Defendants violated LAD on similar grounds as those argued
under USERRA. (See Am. Compl. ¶ 3 (citing N.J. Stat. § 10:5-12), ¶ 28 (“When Plaintiff
returned from his first military deployment, Plaintiff sought to receive those monies, benefits and
other rights secured to him per USERRA and other Statutes.”) (emphasis added), ¶ 43
(“Defendants further violated Plaintiff’s rights pursuant to the New Jersey Law Against
3

Because the Court finds that Plaintiff has insufficiently pleaded that Deputy Zisa, Sgt. Trezza, or Lt. Heinemann
took an adverse employment action against Plaintiff, the Court does not reach the issue of whether each Defendant
was an “employer” for purposes of USERRA. However, the Court questions whether Plaintiff has sufficiently
pleaded that Plaintiff reported to the Defendants, that Plaintiff had a duty to obey their orders, or that Defendants
had the power to hire or fire Plaintiff. See 38 U.S.C. § 4303(4)(A) (“[T]he term ‘employer’ means any person,
institution, organization, or other entity that pays salary or wages for work performed or that has control over
employment opportunities, including—(i) a person, institution, organization, or other entity to whom the employer
has delegated the performance of employment-related responsibilities.”); see also Satterfield, 12 F. Supp. 2d at 438.

15

Discrimination in that military service is a protected status category of such law. . . . Defendants
violated this law by demoting Plaintiff to a walking assignment and refusing to properly
compensate him during his periods of military service.”)). Plaintiff’s general theory of liability
appears to be that Deputy Zisa, Sgt. Trezza, and Lt. Heinemann aided and abetted in enacting
Chief Zisa’s discriminatory policies because they “knew or should have known that Plaintiff’s
rights were being violated yet they did nothing to ensure that the law was followed.” (Id. ¶ 42).
Defendants argue that “an allegation that [Defendants] knew of discrimination of another
officer and failed to take action only imputes liability to the employer,” and therefore “[t]he bare
allegation that these defendants knew of alleged discrimination and did nothing about it is legally
insufficient to state a claim against them individually that they aided and abetted in the
discriminatory conduct.” (Def. Moving Br. at 19 (emphasis added)). Plaintiff contends that the
Defendants are individually liable because they aided and abetted in Chief Zisa’s discriminatory
policies when they “actively participated in the deprivation of [Plaintiff’s] rights and . . . had
actual knowledge of the fact that his rights were being violated.” On reply, Defendants argue
that Plaintiff’s Amended Complaint is devoid of allegations demonstrating Defendants’ “active
and purposeful conduct to support individual liability.” (Def. Reply Br. at 5).
LAD provides essentially the same remedies as those available under USERRA;
however, LAD holds individuals liable for their actions in aiding and abetting violations of an
individual’s rights rather than simply imputing general liability to the employer for the
employees’ acts. See Danna v. Truevance Mgmt., Inc., No. 05-5395, 2007 WL 2156361, at *2
(D.N.J. July 25, 2007) (citing N.J. Stat. § 10:5-12(e)) (“[I]t is unlawful discrimination for ‘any
person, whether an employer or not, to aid, abet, incite, compel, coerce the doing of the acts
forbidden under [LAD].”). Aiding and abetting liability under LAD comes in two forms: an

16

active form, requiring “knowing and substantial assistance,” and a passive form, which requires
that the employee exhibit a deliberate indifference to harassment in the workplace. To establish
the former—the active—form of aiding and abetting liability, a plaintiff must show that “(1) the
party whom the defendant aids must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an overall illegal or tortious activity at
the time that he provides the assistance; and (3) the defendant must knowingly and substantially
assist the principal violation.” Tarr v. Ciasulli, 853 A.2d 921, 929 (N.J. 2004) (quoting Hurley v.
Atlantic City Police Dep’t, 174 F.3d 95, 127 (3d Cir. 1999)).
To establish the latter—the passive—form of aiding and abetting liability, a plaintiff
mush show that the supervisor holds a duty to act against harassment and yet remains
deliberately indifferent to its existence. Hurley, 174 F.3d at 126 (“A supervisor, under New
Jersey law, has a duty to act against harassment. This duty can be violated by deliberate
indifference or affirmatively harassing acts. When a supervisor flouts this duty, he subjects
himself and his employer to liability.”) (citation omitted); see also Taylor v. Metzger, 706 A.2d
685, 691 (N.J. 1998) (“Part of a supervisor’s responsibilities is the duty to prevent, avoid, and
rectify invidious harassment in the workplace.”). Under such a theory, the employer would
remain the principal violator for its failure to prevent or redress the harassing actions of its
supervisors. Hurley, 174 F.3d at 129. However, because the supervisor holds an independent
duty to act against harassment, liability would apply under LAD for aiding and abetting the
employer’s violation.

By demonstrating “deliberate indifference,” the employee supervisor

“subjects himself and his employer to liability.” Id. at 126; Coulson v. Town of Kearny, No. 075893, 2010 WL 331347, at *5 (D.N.J. Jan. 19, 2010).

17

Plaintiff has plausibly pleaded active aiding and abetting liability against Lt. Heinemann
based on discouraging Plaintiff from pursuing his statutorily-guaranteed compensation and
benefits. (See Am. Compl. ¶ 37-38). As to element one, Plaintiff alleges that Chief Zisa, the
party whom Lt. Heinemann aided, performed a wrongful act that caused Plaintiff’s injury. (See
id. ¶ 26 (“Plaintiff was reassigned to a walking post, an assignment that is clearly understood as a
disciplinary post within the Department. When plaintiff asked Captain Cinque why he had been
demoted in this way, Chief [sic] responded that ‘it was the way the Chief wanted it.’”), ¶ 23
(demoting Plaintiff to a walking post following both National Guard deployments)). As to
elements two and three—defendant’s general awareness of his role in the alleged activity and
defendant’s knowing and substantial assistance of the principal violation—Plaintiff’s allegations
of Lt. Heinemann’s discouraging comments satisfy both elements. Specifically, speaking “with
Supervising Officer, Lt. John Heinemann regarding his receiving what the law requires”
demonstrates Lt. Heinemann’s general awareness of the alleged deprivation. (See id. ¶ 37).
Suggesting that Plaintiff “should think about it” before “push[ing] the issue” demonstrates Lt.
Heinemann’s general awareness of his role in “intimidate[ing]” Plaintiff.

(See id. ¶ 38).

Likewise, “clearly telling Plaintiff that any further attempts to recover what he was legally owed
would result in ramifications to his employment circumstances,” (see id.), if true, demonstrates
Lt. Heinemann’s knowing and substantial assistance of the principal violation. See Hurley, 174
F.3d at 127.
Plaintiff fails, however, to plausibly plead LAD liability as to Sgt. Trezza or Deputy Zisa
under the active or passive theory of aiding and abetting liability. Presumably, to allege both
forms of liability, Plaintiff alleges:
Defendants did take actions with full knowledge of the rights due and owing
Plaintiff, . . . [and] [t]hose in line of succession to Defendant C. Kenneth Zisa,
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including Defendant [Deputy] Frank Zisa . . . and Defendant [Sgt.] Anthony
Trezza knew or should have known that Plaintiff’s rights were being violated yet
they did nothing to ensure that the law was followed. They breached their duty.
(Am. Compl. ¶ 42). Plaintiff’s statements that “[t]hey breached their duty” and that “Defendants
did take actions with full knowledge of the rights due and owning Plaintiff” fail under Iqbal and
Twombly because they are bare allegations and provide no factual support regarding how
Defendants “breached their duty,” how they had “full knowledge,” or what “actions” were taken.
Similarly, Plaintiff fails to provide any factual support demonstrating when Deputy Zisa and Sgt.
Trezza failed to act despite the fact that they knew or should have known that Plaintiff’s rights
were being violated.
As such, the Court denies Defendants’ motion to dismiss the LAD claims against Lt.
Heinemann, and the Court grants Defendants’ motion with respect to the LAD claims against
Deputy Zisa and Sgt. Trezza with leave to amend.
E.

SSCRA Claims

Defendants argue for dismissal on Plaintiff’s SSCRA claims on the basis that the statute
only applies to employers and provides no private civil remedy against individuals. (See Def.
Moving Br. at 15-16). Plaintiff counters that, “N.J. S[tat. §] 38A:4-4 sets forth no definition of
employer and plaintiff has stated a cause of action against the individual defendants for violation
of this Act,” and that “[n]othing in the Act indicates that these individuals cannot be held liable
for violation of the provisions of the statute.” (Pl. Opp. Br. at 18). Defendants reply that the
SSCRA “statutes limit their remedies to benefits that can be provided by the employer; remedies
that are not available against individual employees,” and that “Lopez-Arenas has not alleged any
way in which these defendants violated these acts.” (Def. Reply Br. at 6). The Court agrees with
Defendants that Plaintiff has not adequately alleged a cause of action under SSCRA.

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Generally, SSCRA requires that any person who has left a position with an employer in
order to perform military service shall be restored to a comparable position upon return. The
statute provides:
a. In the case of any person who, in order to perform military service, has left or
leaves a position, other than a temporary position, in the employ of any employer,
and who: (1) Receives a certificate of completion of military service duly
executed by an officer of the applicable force of the Armed Forces . . . ; (2) Is still
qualified to perform the duties of such position; and (3) Makes application for
reemployment within 90 days after he is relieved from such service, if such
position was in the employ of a private employer, such employer shall restore
such person to such position, or to a position of like seniority, status and pay,
unless the employer’s circumstances have so changed as to make it impossible or
unreasonable to do so.
N.J. Stat. § 38:23c-20(a)(1)-(3) (emphasis added). SSCRA provides no definition of employer,
see N.J. Stat. § 38:23C-2, but, as discussed above, USERRA does provide a definition, and the
New Jersey legislature contemplated the USERRA definition when it enacted SSCRA. See
William S. Greenberg, et al., 47 N.J. Practice, Civil Trial Handbook § 8:3 (5th ed. 2009-2010 &
Supp. 2010); Marvin M. Goldstein & Stanley L. Goodman, 18 N.J. Practice, Employment Law §
7A.4-7A.5 (2d ed. 2005-2010 & Supp. 2010).
The Court finds that Plaintiff does not allege whether and how Deputy Zisa, Sgt. Trezza,
and Lt. Heinemann are “employers” for purposes of SSCRA. Indeed, Plaintiff merely references
SSCRA in passing, in conclusory fashion. (See Am. Compl. ¶ 3 (providing citations only), ¶ 41
(“Defendants did in whole, in part and/or concert did operate to deny Plaintiff his statutory rights
as set forth in 38 U.S.C.S. § 4301 et seq., also known as USERRA and N.J. S[tat. §] 38:23c-208
and N.J. S[tat. §] 38A4-4, said violations included but were not limited to his losing monies,
pension, vacation time and seniority all of which is prohibited by the language of the abovereferenced statutes.”). Additionally, because of the lack of clarity as to the SSCRA allegations in
general, it is difficult for the Court to even discern Plaintiff’s theory of liability. For example, it
20

is unclear whether Plaintiff asserts liability against Deputy Zisa, Sgt. Trezza, and Lt. Heinemann
in their individual capacities, as proxies for Chief Zisa, or as proxies for the police department
itself.4 Therefore, the Court grants Defendant Deputy Zisa, Sgt. Trezza, and Lt. Heinemann’s
motion to dismiss without prejudice with leave for Plaintiff to amend.
F.

Punitive Damage Claims Against Chief Zisa

Defendants seek dismissal on the punitive damage claims against Chief Zisa on the basis
that the Tort Claims Act precludes such damages against an employee acting in his official
capacity. Chief Zisa concedes, however, that punitive damages against him acting in his
individual capacity might still apply. (Def. Reply Br. at 7). Plaintiffs argue that punitive
damages apply in cases where the state official acted with “evil motive or intent” and that the
Chief did so in this case. (See Pl. Opp. Br. at 19-20). The New Jersey Tort Claims Act, N.J.
Stat. § 59:9-2, states that “[n]o punitive or exemplary damages shall be awarded against a public
entity.” N.J. Stat. § 59:9-2. Punitive damages, therefore, can only apply to an employee’s
actions in his individual capacity. See Drake v. Andruczyk, No. 08-4249, 2011 WL 1402158, at
*8 (D.N.J. Apr. 13, 2011) (citing Ramirez v. United States, 998 F. Supp. 425, 438 (D.N.J. 1998)).
Thus, the Court grants Defendants’ motion to dismiss Plaintiff’s claims for punitive damages
against Chief Zisa in his official capacity. These claims are dismissed with prejudice.

4

In addition to the insufficiency of Plaintiff’s allegations as to the “employer” prong of SSCRA, the Court questions
whether Plaintiff has even pleaded the threshold requirements under SSCRA, including a certificate of completion,
qualification, and a timely application for reemployment. See N.J. Stat. § 38:23c-20(a)(1)-(3).

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III.

CONCLUSION
For the reasons set forth above, the Court DENIES Defendants’ motion to dismiss the

§ 1983 claim against Sgt. Trezza and the LAD claim against Lt. Heinemann.

The Court

GRANTS Defendants’ motion as to all other § 1983 (and § 1985), USERRA, LAD, and SSCRA
claims, without prejudice, with leave to amend within thirty days of the publication of this
Opinion to correct the deficiencies set forth above. Punitive damages claims against Chief Zisa
in his official capacity are dismissed with prejudice.

Additionally, Plaintiff consents to

dismissing claims for relief and damages against the HPD, (Pl. Opp. Br. at 18-19), and to striking
claims asserted under RICO and the Fifteenth Amendment as alleged in the Amended
Complaint.5 (Id. at 20). Should Plaintiff choose to amend, for purposes of clarity, the Court
requests that Plaintiff separate his claims into multiple causes of action, explicitly addressing all
elements of all claims that he chooses to pursue. An appropriate Order will follow.

s/Esther Salas
x
Esther Salas, U.S.D.J.

5

The claims against HPD are dismissed with prejudice because, as Plaintiff concedes, the “Department is not
considered an entity separate from the municipality named as a defendant.” (Pl. Opp. Br. at 18). The RICO and
Fifteenth Amendment claims are also dismissed with prejudice “because the statute and Constitutional provision are
not relevant to this action.” (Id. at 20).

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